John David Keith

The appellant, Pauline Altberg, appealed a summary judgment that discharged a mortgage held by her and dismissed her counterclaim for payment, based on a limitation period defense.

The core issue was whether a $4,000 payment in 2010 by the respondent, Thomas Maxwell, reset the 10-year limitation period under s. 23(1) of the Real Property Limitations Act.

The motion judge, applying the Hryniak two-stage approach, found insufficient evidence to prove the payment was made towards the mortgage debt, and thus Altberg failed to meet her onus to show the action was within the limitation period.

The Court of Appeal upheld this decision, affirming that the motion judge was entitled to make a determination on summary judgment even if facts were difficult to resolve, and that the onus remained on the party seeking to enforce the right to prove the action was within the limitation period.

This endorsement addresses the issue of costs following a trial where the plaintiffs were successful in their breach of contract claim against the defendants, arising from an aborted business sale.

The court had previously found the defendants committed an anticipatory breach and awarded damages of $53,310.04.

The plaintiffs sought $70,000 in costs, while the defendants argued no costs should be awarded, citing the judgment amount being below the Rule 76 threshold.

The court, applying Rule 57.01, found that costs were appropriate given the plaintiffs' success, their Rule 49 offer, and the defendants' unfounded allegation of civil fraud, which complicated the trial.

The court awarded the plaintiffs an all-inclusive amount of $64,000 for costs.

This trial concerned a failed asset purchase agreement for a fastener distribution business.

The plaintiffs, vendors of the business, sued the defendants, purchasers, for breach of contract after the transaction failed to close.

The defendants argued the agreement was void for uncertainty and that the plaintiffs had made fraudulent misrepresentations regarding sales and inventory.

The court found the agreement enforceable, dismissed the misrepresentation claims, and determined that the defendants committed an anticipatory breach by attempting to renegotiate the purchase price.

The plaintiffs were awarded damages, calculated based on the expectancy principle, though the amount was adjusted from their initial claim.

The applicants, shareholders of Eneighbl Inc., brought an application against John Walt, Sylvie Tremblay, and Eneighbl Inc. for various claims including misrepresentation, breach of fiduciary duty, misappropriation, oppression, negligence, unjust enrichment, and breach of contract related to share redemption.

The court dismissed claims of misrepresentation, fraud, fiduciary duty, misappropriation, unjust enrichment, and oppression, finding the applicants were sophisticated investors who made their own decisions despite Mr. Walt's mental health issues and the speculative nature of the business.

However, the court found Mr. Walt liable for breach of contract for failing to redeem the applicants' shares at their original purchase price and for personal loans.

Eneighbl Inc. was found liable for expense reimbursements.

The application against Ms. Tremblay was dismissed entirely.

The court declined to award costs to the successful applicants due to their disingenuous conduct and unproven serious allegations.

This decision addresses an application by Nanaksar Satsang Sabha of Ontario (the Gurdwara) for the production of files from four law firms involved in prior litigation.

The central issue was the effect of a solicitor's lien on production requests, particularly concerning the validity of the lien when a solicitor withdraws from the record without cause or when the limitations period for fee recovery has expired.

The court ordered all four firms to produce their files.

It found that Teplitsky Colson LLP did not have a valid solicitor's lien because it initiated its removal from the record without demonstrating cause.

For Gray Whitley van der Valk, production was ordered with specific terms to preserve the value of its claimed lien until the resolution of the underlying fee dispute.

The applicants sought to set aside a land transfer from Robert Graham to his daughter, Elizabeth Graham, for nominal consideration, and to set aside an Order to Continue.

The court found that the transfer violated the terms of a 1960 agreement which required prior written consent from other owners for any alienation of a share, including inter vivos gifts to family members.

The court rejected the respondent's arguments that the agreement only applied to third parties, that consent was unreasonably withheld, or that the agreement was unenforceable under the Land Titles Act.

The applicants' motion was granted, the transfer was declared invalid, and the Order to Continue was set aside.

Following dismissal of the plaintiff bank’s summary judgment motion on personal guarantees under the simplified procedure, the defendants sought substantial indemnity costs of over $18,000.

The court rejected arguments that contractual provisions or the plaintiff’s decision to pursue summary judgment justified elevated costs.

The court held that substantial indemnity costs generally require reprehensible conduct, which was not established.

The claimed hours and duplication caused by a change of counsel rendered the defendants’ bill excessive.

Costs were therefore fixed on a partial indemnity basis in a reduced all‑inclusive amount.